Holmes v. Curren

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RODNEY HOLMES,

Plaintiff,

v. Case No. 17 C 3031

MARK CURRAN; LAKE COUNTY Judge Harry D. Leinenweber

SHERIFF’S OFFICE; DAVID

WATHEN; DOUGH LARSSON;

RAYMOND ROSE; SERGEANT W.R.

KINVILLE; and LAKE COUNTY,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Rodney Holmes alleges that he was the target of a

malicious prosecution orchestrated by the Defendants. The

Defendants now move to dismiss Holmes’s complaint for failure to

state a claim. For the reasons discussed below, that motion is

granted in part and denied in part.

I. BACKGROUND

Though the Complaint is thin on details, this is what the

Court has been able to infer: Rodney Holmes was a Lake County

Corrections Officer when an inmate, one Eugene Gruber, died.

(Am. Compl. ¶ 14, Dkt. 7.) Holmes alleges that the Defendants

“wanted a scape goat” for Gruber’s death, especially given the

approaching reelection bid by Defendant Curran, so they decided

to frame Holmes, notwithstanding the Defendants’ shared

understanding that Holmes “was innocent.” (Id. ¶¶ 14, 17-18.)

Holmes was indicted and tried in state court for the crime of

official misconduct, but he was acquitted. Defendants Larsson

and Rose allegedly “fabricated events” surrounding Gruber’s

death and communicated those fabrications to prosecutors and the

grand jury (id. ¶ 18); Defendant Wathen authorized Defendant

Larsson to participate in the grand jury proceedings (id. ¶ 16);

Defendant Rose “spoke to the press” after Holmes’s court dates

and suggested he was a criminal (id. ¶ 19); and Defendant

Kinville also allegedly lied to prosecutors and then falsely

testified against Holmes at trial (id. ¶ 20).

After his acquittal, Holmes filed this four-count lawsuit,

comprising: a due process claim arising from malicious

prosecution; an unspecified Fourth Amendment claim, also arising

from malicious prosecution; a malicious prosecution claim under

Illinois law; and a claim seeking indemnification by Lake County

and the Sheriff’s Office of the other Defendants. See, 745 ILCS

10/9–102. Defendants now move to dismiss that Complaint for

failure to state a claim. (Dkt. 16.) In weighing that Motion,

the Court accepts all well-pleaded allegations as true and draws

all reasonable inferences in favor of the Plaintiff. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

II. MALICIOUS PROSECUTION (COUNTS I, II, AND III)

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Malicious prosecution is not a free-standing,

constitutional tort. Hurt v. Wise, 880 F.3d 831, 843 (7th Cir.

2018). Rather, a malicious prosecution claim must be predicated

upon the violation of some other constitutional right, such as

those provided by the Due Process Clause or the Fourth

Amendment. Id. Here, Holmes brings three different varieties

of malicious prosecution claims.

A. Due Process Claim (Count I)

The Fourteenth Amendment’s Due Process Clause is the

relevant constitutional source for Count I. Id. at 843-44. But

Holmes’s due-process rights are not implicated by the evidence

fabrication alleged here unless that evidence was “used to

deprive [Holmes] of [his] liberty in some way.” Bianchi v.

McQueen, 818 F.3d 309, 319 (7th Cir. 2016) (quoting Whitlock v.

Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012)). To cite the

now-classic example, no infringement of liberty occurs when an

officer fabricates evidence but merely keeps the phony proof in

a drawer, making no further use of it. Whitlock, 682 F.3d at

582 (citing Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir.

1994)).

But even when the prosecution uses fabricated evidence at

trial, the defendant’s due process claim is wiped away if he is

released on bond and then acquitted. See, Bianchi, 818 F.3d at

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320. In Alexander v. McKinney, 692 F.3d 553, 557 (7th Cir.

2012), for example, a plaintiff pursued a due process claim

based on fabricated evidence after he was arrested, immediately

released on bond, and acquitted. The Seventh Circuit held that

the acquittal foreclosed any due-process claim because “[i]t

would be anomalous to hold that attending a trial deprives a

criminal defendant of liberty without due process of law, when

the purpose of trial is to effectuate due process.’” Bianchi,

818 F.3d at 321 (quoting Alexander, 692 F.3d at 557 n.2)

(emphasis in original); accord Saunders-El v. Rohde, 778 F.3d

556, 558 (7th Cir. 2015) (“[D]ue process is not implicated when,

as here, the defendant is released on bond following his arrest

and acquitted at trial.”); cf. Hurt, 880 F.3d at 843-44

(refusing to reverse denial of defendants’ summary judgment

motion based on qualified immunity where relevant plaintiff was

detained pretrial, prosecutors used fabricated evidence against

him, and he was acquitted).

Here, Holmes’s Complaint recites that he was arrested,

prosecuted, and acquitted of all charges. The Complaint nowhere

explains whether Holmes was held in pretrial detention or else

released on bond, although his response brief suggests the

latter is true. (Resp. at 2, Dkt. 23 (reciting that Plaintiff

was on bond).) The Defendants suggest the same and explain that

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a so-called “Exhibit A” demonstrates that “Holmes did not spend

any time in jail other than to be processed on the warrant.”

(Mem. in Supp. at 2-3, Dkt. 18.) The Court cannot verify these

representations, however, because whatever “Exhibit A” might be

is a mystery—it was not attached to Defendants’ Motion nor filed

elsewhere with the Court. To any extent, that Holmes was held

in pretrial detention is not a “reasonable inference” that the

Court must now draw from the Complaint, Iqbal, 556 U.S. at 678;

rather, it is a wholly absent, and here-critical, allegation.

Given that Holmes was acquitted, he cannot state a due process

claim unless he was held in pretrial detention—as opposed to

posting bond after his arrest. See, Bianchi, 818 F.3d at 321;

Saunders-El, 778 F.3d at 558. His failure to allege that fact

is fatal to his claim. If the briefing is mistaken, and Holmes

was in fact held in pretrial detention, he may replead this

Count. Count I is dismissed without prejudice.

B. Fourth Amendment Claim (Count II)

“The Fourth Amendment prohibits government officials from

detaining a person in the absence of probable cause.” Manuel v.

City of Joliet, 137 S. Ct. 911, 918-19 (2017). “That can happen

when the police hold someone without any reason before the

formal onset of a criminal proceeding. But it also can occur

when legal process itself goes wrong—when, for example, a

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judge’s probable-cause determination is predicated solely on a

police officer’s false statements. Then, too, a person is

confined without constitutionally adequate justification.” Id.

It makes no difference that Holmes’s initial detention—his

arrest—was authorized by a probable cause determination made by

a grand jury and not by a judge. Id. at 920 n.8.

Holmes does not explain how any specific detention

infringed his Fourth Amendment rights, though his Complaint does

mention elsewhere that he was arrested. (Am. Compl. ¶¶ 32-33.)

He also alleges that the charges against him were trumped-up and

that the evidence presented to the grand jury was fabricated.

(Am. Compl. ¶¶ 13-20.) By accepting these allegations as true

and considering the plausibility of the Complaint as a whole,

see, Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.

2011), the Court concludes that Holmes’s arrest was unsupported

by probable cause and thus provides a basis for a Fourth

Amendment claim.

Whether Holmes also intends to claim a Fourth Amendment

violation stemming from any pretrial detention he suffered is

another matter. As described above, Holmes has not alleged he

was detained pretrial. This closes the matter for now, but the

Court also notes the following for the sake of completeness.

Until recently, the Seventh Circuit did not recognize Fourth

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Amendment claims for allegedly unsupported, pretrial detentions.

See, Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir.

2015), rev’d and remanded, Manuel v. City of Joliet, 137 S. Ct.

911 (2017). Instead, plaintiffs challenging such detentions had

to rely on the due process clause. Id. In 2015, the Seventh

Circuit recognized that this was a minority position among the

courts of appeals, but, rather than overruling settled circuit

precedent, invited the Supreme Court to weigh in. Id. at 644.

The Court did so, and held in Manuel v. City of Joliet, 137 S.

Ct. 911, 917 (2017) that plaintiffs may state Fourth Amendment

claims for post-legal-process detentions unsupported by probable

cause (i.e., pretrial detentions).

In sum, Count II survives insofar as it states a claim for

unlawful arrest. If Holmes can in good faith allege that he was

also unlawfully held in pretrial detention, he may amend

Count II accordingly.

C. Qualified Immunity Defense (Counts I and II)

The Defendants also argue Counts I and II should be

dismissed on qualified immunity grounds. “Qualified immunity

shields government officials from civil damages liability unless

the official violated a statutory or constitutional right that

was clearly established at the time of the challenged conduct.”

Ewell v. Toney, 853 F.3d 911, 919 (7th Cir. 2017) (quoting

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Reichle v. Howards, 566 U.S. 658, 664 (2012)). But generally

speaking, “[b]ecause an immunity defense usually depends on the

facts of the case, dismissal at the pleading stage is

inappropriate: The plaintiff is not required initially to plead

factual allegations that anticipate and overcome a defense of

qualified immunity.” Alvarado v. Litscher, 267 F.3d 648, 651-52

(7th Cir. 2001) (internal quotations and citations omitted).

The Court will not deviate from that general rule here, so the

qualified immunity argument affords Defendants’ motion no

additional traction.

D. State Law Malicious Prosecution Claim (Count III)

The Defendants move to dismiss this Count solely on the

grounds that if the Court dismissed Counts I and II, the Court

would no longer have subject matter jurisdiction to hear this

case. But that presumption did not play out in Defendants’

favor; Count II survived the Motion, so Defendants’ only

argument in support of dismissal fails. The Motion to Dismiss

is denied as to Count III.

III. INDEMNIFICATION (COUNT IV)

In Count IV, Holmes seeks to have Lake County and the

Sheriff’s Office indemnify the other Defendants pursuant to 745

ILCS 10/9–102. Defendants move to dismiss this Count on two

grounds. First, Defendants presumed again that once the Court

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dismissed Counts I-III, there would be nothing left to

indemnify. See, Banske v. City of Calumet City, No. 17 C 5263,

2018 WL 372145, at *3 (N.D. Ill. Jan. 11, 2018) (quoting Benedix

v. Vill. of Hanover Park, No. 10 C 3072, 2010 WL 5099997, at *3

(N.D. Ill. Dec. 8, 2010), aff’d, 677 F.3d 317 (7th Cir. 2012)).

But Defendants have failed to secure the dismissal of Counts II

and III, so this argument falls apart. Second, Defendants

contend that the Sheriff’s Office is not a proper indemnitor.

Defendants do not explain any specific rationale for this

belief, although they cite to Carver v. Sheriff of La Salle

County, 787 N.E.2d 127, 129 (Ill. 2003) and Askew v. Sheriff of

Cook County, 568 F.3d 632, 637 (7th Cir. 2009). But those cases

do not stand for the proposition that the Sheriff’s Office can

never be a proper indemnitor. Rather, the relevant takeaway

from those cases is that Illinois statutes compel counties to

indemnify (1) judgments entered against sheriffs and deputies in

their personal capacities, Carver, 787 N.E.2d at 134 (citing 55

ILCS 5/5–1002) and (2) judgments entered against the sheriff in

his official capacity, Askew, 568 F.3d at 636 (citing 745 ILCS

10/9–102). It is not clear what Defendants’ argument is on this

front, especially given that under section 9–102, “the Sheriff

is required to pay any tort compensatory damages judgment for

which he or an employee acting within the scope of his

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employment is liable so long as the conduct was wilful [sic] and

wanton.” Brown v. King, 767 N.E.2d 357, 362 (Ill. App. Ct.

2001) (citation omitted); but cf. Lewis v. Cook Cty. Corr.

Officers, No. 01 C 6318, 2002 WL 31133175, at *1 (N.D. Ill. July

19, 2002) (noting disagreement among courts regarding scope of

sheriff’s respondeat superior liability). The Court will not on

this basis strike the Sheriff’s Office from Count IV. See, Cty.

of McHenry v. Ins. Co. of the West, 438 F.3d 813, 818 (7th Cir.

2006) (“[T]he district court . . . will not invent legal

arguments for litigants.”).

IV. INSUFFICIENT SERVICE OF PROCESS

In a single line of their Motion to Dismiss, Defendants

aver that Holmes failed to serve Defendants Larsson and Rose,

which the Court reads as Defendants’ belief that Larsson and

Rose should be stricken from the complaint for insufficient

service of process. FED. R. CIV. P. 12(b)(5). Holmes failed to

respond to this contention in his briefing, and as such he

concedes the failure of service. See, A.C. v. Standard Bank &

Tr. Co., No. 15 C 7693, 2016 WL 1407712, at *2 (N.D. Ill. Apr.

11, 2016) (“A party’s failure to respond to arguments the

opposing party makes in a motion to dismiss operates as a waiver

or forfeiture of the claim and an abandonment of any argument

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against dismissing the claim.”). The Court accordingly strikes

Larsson and Rose from the Complaint.

Vv. CONCLUSION

For the reasons stated herein, Defendants’ Motion to

Dismiss [ECF No. 16] is granted in part and denied in part.

Count I is dismissed without prejudice, and Defendants Larsson

and Rose are dismissed given the insufficient service of

process.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Dated: 6/12/2018

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